Monday, December 12, 2016

This post originally appeared on Prawsblawg.
There has been a lot of action recently in the world of juvenile confessions. Some of it has garnered nation-wide attention, like Brendan Dassey, the 16 year-old from the Netflix documentary series Making a Murderer, who is currently trying to convince a judge to release him after a federal appeals court (finally) found his confession to murder to have been coerced and involuntary. Less newsworthy, but just as important, the U.S. Supreme Court refused to review a decision upholding as knowing, intelligent and voluntary a Miranda waiver by an abused and developmentally-delayed 10 year-old. In California, Governor Brown vetoed legislation that would have required counsel for those under 18 before custodial interrogation could begin.

Each of these developments occurred days or weeks after I submitted a paper that explores the state of the law regarding Miranda waivers by juveniles. Where others have convincingly argued that juveniles need (and perhaps the constitution demands) counsel before they can validly waive the 5th Amendment privilege against self-incrimination, my paper considers whether interrogation law should incorporate a rule akin to contract law’s infancy doctrine and permit individuals to retract uncounseled Miranda waivers.

This exploration of contract law's relevance to criminal procedure has me considering whether there is a bargaining zone for Miranda waivers.

Wednesday, December 7, 2016

Back in May, a Loyola Law School student and I submitted a clemency petition to the Office of the Pardon Attorney (OPA) as part of President Obama's Clemency Initiative. Our client had received a 30 year sentence for a non-violent cocaine offense that would, today, likely come with a 10-12 year sentence. Our client had already served 19 years of the sentence. At the end of October, I received the amazing phone call from the OPA informing me that the President was signing the petition, and that our client's sentence was to be commuted, and would expire in Feb. 2017, sparing him 6-11 additional years in prison.

That Obama should sign thousands more such petitions before he hands over the Executive Office to an individual who does not believe in the redemption of anyone other than himself is an imperative of justice. Yet, despite this tremendous victory, the challenge that awaited our client upon release was not lost on him. He was now 52 years old, he possesses few 21st-century labor market skills, and--perhaps most daunting of all--he would still carry his criminal record with him wherever he went.

Monday, November 28, 2016

This is an excerpt from an op-ed originally published in the Sacramento Bee.
Beneath the headlines of renegotiating NAFTA and torpedoing the Trans-Pacific Partnership, President-elect Donald Trump has often spoken about improving trade law enforcement, especially against China. On the campaign trail, he beat that drum in pretty much the same rhythm as Hillary Clinton.

While Clinton specifically proposed a new trade “prosecutor” and to triple the enforcement staff at office of the U.S. Trade Representative, the Trump campaign promised to use “every lawful presidential power to remedy trade disputes if China does not stop its illegal activities” and to bring new trade law cases in this country and at the World Trade Organization.

Trump is no stranger to litigation, but how can he and his administration execute on this promise?

In June 2015 the Department of Defense (DoD) General Counsel issued a 1,200 page manual providing unified guidance on the law governing armed conflict. Unfortunately, despite such positive attributes as an unequivocal condemnation of torture, it is badly flawed. Sporadic criticism, notably media outrage over its treatment of the press, led DoD to issue a slightly revised 2016 version, mostly making cosmetic changes to language about reporters.

This article provides the first comprehensive critique, noting the manual’s uncertain hierarchical status or legal effect given its express disclaimer to not “necessarily reflect...the views of the U.S. Government as a whole.” Stylistically, it is twice the length it should be, suffering from unnecessary repetition and internal inconsistencies.

The manual’s substantive shortcomings are more significant than its literary vices, including basic errors in international law and idiosyncratic views that are outdated, unsupported by credible authority, or even counter to larger U.S. interests. Its treatment of proportionality, for example, endeavors to shift the greater burden for avoiding civilian casualties from the attacker to the defender. It makes a poorly supported claim of a U.S. right to use expanding bullets despite widespread recognition as a war crime. And it fails to enumerate which provisions of, the First and Second Additional Geneva Protocols of 1977 (AP I and II) – are binding on U.S. forces even though that was the original impetus for developing a joint U.S. manual.

The article concludes that the volume should be officially withdrawn until it can be brought up to an appropriate professional standard, or replaced with a manual more faithfully serving the law, U.S. military forces, and America’s true national interests.

Tuesday, November 15, 2016

The election of Donald Trump, who achieved his victory through the arcane and antiquated Electoral College, but appears to have lost the popular vote, is but one example of the undemocratic character of our Constitution. In truth, the Constitution was designed to operate as an anti-democratic check on We the People. The framers saw democracy as a form of mob rule. In fact, one of the chief reasons they met in Philadelphia in 1787 was to curb the democratic excesses of state legislatures.

Let’s begin with Congress, which is composed of two legislative bodies, the Senate and the House of Representatives. Although the people elect the membership of both Houses, neither House is truly representative of the people and both are far from democratic.

The Senate is notoriously and purposefully undemocratic. Each state is awarded two Senators, regardless of the population of that state. Hence, the approximately 600,000 citizens of Wyoming are given the same power and voice in the Senate as the nearly 39 million citizens of California. As a consequence of this grossly disproportionate system of representation, a minority of the national population controls a majority of the Senate. And given the Senate’s requirement of a 60-persons super majority to bring any measure up for a vote, the anti-democratic character of the Senate is even more pronounced.

At first glance, the House of Representatives seems more representative, but the emphasis should be

on the word “more.” Membership in the House is proportioned among the states based on population. So far so good. In this sense, the House is more representative than the Senate. But the current system of congressional districting, under which the districts are re-mapped every 10 years by state legislatures, has led to endemic political gerrymandering that artificially distributes power between the two parties in accord with whichever party happens to be in power in the state at the time of the redistricting. As has often been said, the voters don’t pick their representative. Rather, the representatives pick their voters.

The membership in the House also suffers from the fact that the current method of election—i.e., district-by-district, winner-take-all—artificially enthrones the monochromatic two-party system and virtually eliminates any serious competition from third-party candidates. A proportional system of election—i.e., one that gears a party’s share of representation to its share of support as voiced in the election—is decidedly more democratic and more likely to reflect the true democratic consensus.

The anti-democratic character of Congress is further exacerbated by “bicameralism, ” which requires that both Houses approve any legislation before it becomes a law. Although neither chamber of Congress is truly representative, bicameralism imposes an additional safeguard against democracy by giving the wholly undemocratic Senate a check on any democratic impulse exhibited by the House.

The president, as we know from this most recent election, is certainly not elected democratically. Rather, the president is elected in accord with a system that gives stronger voice to persons living in less populous states—much like the composition of the Senate, but marginally less disproportionate. And even in those cases where a presidential candidate wins both the popular vote and the Electoral College vote, it does not follow that that candidate won a majority of the popular vote. In fact, in 16 presidential elections, no candidate received a majority of the popular vote. So in close presidential contests, victory goes to the candidate who can best game the system or who is simply the luckiest of the pack. Surely, we could survive a democratic system in which the victor of a presidential contest would be required to win a majority of the votes cast. And in those cases where no candidate achieves a majority in the first round, a prompt runoff between the two leading candidates could resolve the contest.

One final point on the president: Along with bicameralism, no legislation can become a law unless “presented” to the president for approval. Thus, the undemocratically elected president has the power to veto legislation that has somehow has survived the gauntlet of the Senate, the House, and bicameralism.

The judiciary is said to be the least democratic branch. The president nominates, and with the approval of the Senate, appoints the justices of the Supreme Court and all lower federal court judges. We often hear critiques of the “unelected” judiciary and of the anti-majoritarian character of judicial review—the power to declare a law unconstitutional. But although the judiciary is surely “unelected,” it is neither more nor less democratic than the decidedly undemocratic institutions that nominate, approve, and appoint the members of the judicial branch. Like all of the undemocratic obstacles listed above, the judiciary and its attendant power of judicial review are simply part of the anti-democratic constitutional arsenal.

Finally, let’s consider the Bill of Rights and those amendments to the Constitution designed to protect individual rights. In one obvious sense, these amendments are also anti-democratic in that they prevent even a true majority from taking action in violation of the protected rights. In a sense, the activities protected by those provisions are sealed from majority (or sub-majority) interference.

In a more important sense, however, the provisions protecting individual rights may be the only truly democratic provisions in the Constitution. Those rights preserve the liberty of the demos and create a platform from which the possibility of democracy might emerge. The platform is built on freedom of speech and press, the right to assemble, the right to vote, and the right to equal protection of the laws. Given the power of judicial review, one might argue that the constitutional mission of judiciary is to not to preserve the Constitution but to preserve the possibility of democracy through the enforcement of those rights. Of course, I’m being idealistic. The democratic values of the current Supreme Court are far from evident. But it would be a delicious irony if the unelected judiciary became the vehicle through which a true democracy could emerge.

Wednesday, November 9, 2016

Yesterday, California voters passed Proposition 66, a measure that is designed to hasten the capital sentencing process. Professor Sean Kennedy, executive director of the Loyola Center for Juvenile law & Policy and former head of the Federal Public Defender's Capital Habeas Unit, foresees problems:

Habeas lawyers are likely to argue that Prop 66 violates due process. For 40 years, the state supreme court decided all the capital habeas petitions to ensure uniformity and fairness in the application of the death penalty in California. Now all bets are off because the individual trial judges will decide those issues, leading to conflicting decisions and inconsistent application of the death penalty throughout the state.

Monday, November 7, 2016

Just days before the presidential election, concerns about Donald Trump’s payment of his tax obligations persist. Recent press coverage has focused on an issue that (at least so far, based on very limited information) probably does not disqualify him to be our president, and has not focused enough on two more fundamental tax issues that disqualify him to be our president.

In the past few days, press coverage has emphasized a technical business tax question: what specific tax strategies did Trump use to generate and preserve $916 million of net operating losses (NOLs), despite massive debt discharge, and were those strategies legally questionable? A front page November 1 New York Times article on this topic asserts that the “stock for debt swap” part of Trump’s overall tax strategy was a new tax “dodge” dreamed up by tax lawyers to avoid debt discharge income (COD) on the cancellation of debt. This characterization of such swaps as a new tax scam is inaccurate. My academic articles on corporate COD explain the long history and theory of the exception and its gradual repeal. Suffice it to say that “stock for debt swaps” in bankruptcy cases were relatively common in the 1980s and early 1990s. Unless there is more to be revealed, Trump’s use of the stock for debt exception to COD does not disqualify him to be president.

But Trump’s conduct regarding two other tax issues does disqualify him to be president.

First, Trump’s continuing failure to disclose his tax returns is a disqualifier. For decades, all other presidential candidates have disclosed their tax returns. As Republican Fred Goldberg (IRS Commissioner under President George H.W. Bush) argues, a candidate who refuses to disclose tax returns has not earned our trust and is not qualified to be our president.

Although Trump claims that he cannot disclose his tax returns because he is being audited, many of Trumps’ tax returns are not under audit. The statute of limitations (SOL) for tax returns is generally three years (or six years if large amounts of income are omitted) from the filing date. This means that the IRS generally has three years to challenge the return and claim that the taxpayer owes additional tax for a specific tax year. In addition, a special rule extends the SOL for years to which NOLs are carried back. Once an audit begins, a taxpayer often consents to extend the SOL, to give the IRS and the taxpayer time to settle the case without a lawsuit. If a taxpayer does not extend the SOL or agree to pay extra tax, the IRS sends the taxpayer a letter that initiates a lawsuit in the US Tax Court. The upshot of this is that Trump’s tax returns for a number of years currently may be in the administrative audit process with the IRS -- but they can’t ALL be in audit. In addition, it is doubtful that the IRS has audited Trump’s most recent income tax return. If, as is likely, his 2015 tax return is not under audit, Trump should disclose it. Also, he should disclose his returns for any earlier years that currently are not under audit.

Second, Fred Goldberg and fellow Republican Michael Graetz (Deputy Assistant Secretary, Tax Policy, under President George H.W. Bush) conclude that Trump likely failed to pay Medicare taxes on salary income he understated. In addition, unless Trump reported all of the salary he was paid for his services as self-employment income, he likely also failed to pay Social Security taxes. (Only disclosure of his self-employment income and other details from his tax returns could refute that conclusion.) Even minimum wage workers pay Social Security and Medicare taxes. Trump’s conduct shows that he shares the view expressed by another famous New York City business tycoon, Leona Helmsley: “only the little people pay taxes.” His avoidance of payroll taxes is an insult to law-abiding, taxpaying Americans and disqualifies him from being our president.

Thursday, November 3, 2016

The overall goal of our Constitution is to promote the general welfare of the people through a system of ordered liberty. Over the past two centuries, this constitutional structure has functioned reasonably well, though not without serious challenges, including a bloody civil war. It is a system designed for public-spirited problem solvers. And it seems clear that if the people’s representatives want to accomplish something, our constitutional system will allow them to do so. Of course, that will require thoughtfulness, negotiation, and compromise.

There is, however, nothing mystical or metaphysical about our Constitution. It is not perfect and no reorganization of it or amendment to it will ever make it so. When drafted and ratified it represented best ideas on governance that could survive the necessary political compromises of that day. Some of its imperfections have been repaired, such as the abolishment of slavery, but others remain, including our grossly malapportioned Senate. Its success and longevity is the product of the public servants who make it work.

Federal agencies have quickly become some of the most important regulators of class actions and court access—particularly as stalemates, splits and institutional constraints limit the Supreme Court and federal rules committees from reforming class actions. But we have yet to appreciate how powerful agencies really are in regulating court access or what, if anything, courts should do about it.

Agencies have many different tools to regulate class actions, and in turn, private enforcement of law. Relying on varying degrees of authority—statutes, funding, licensing and litigation positions—agencies can enable, disable or de-stablize litigation.

First, agencies may enable litigation in several ways. They may bar companies from mandating arbitration with others; create evidentiary presumptions or require disclosures that minimize the number of individual issues required to group together cases in federal courts; and they may even hear class actions and other kinds of aggregate litigation, themselves, reducing backlogs and improving opportunities for judicial review.

Tuesday, October 11, 2016

Last month, ITT Educational Services—one of the nation’s largest for-profit colleges—announced that it was shutting its doors in the wake of several state and federal fraud investigations. The closure comes as the U.S. Department of Educationcracks down on shady colleges that lure unwitting students with false promises of money and jobs. But behind the controversy over “predator schools” lies a more vexing problem: how the government will handle thousands of claims by ITT’s former students seeking federal loan forgiveness.

Federal law has long entitled students to federal loan forgiveness when they are left in the lurch by colleges that commit fraud or go bankrupt. The principle behind this rule is that students are doubly punished when they rack up crippling debt in schools that can never provide them with a marketable degree. But after the closure of Corinthian Colleges, a for-profit educational institution that collapsed two years ago under similar circumstances to those involving ITT, the backlog of claims brought by students seeking debt relief from the Education Department swelled to over 25,000. If another 30,000 ITT students go down the same road, it could be years before the Department decides whether these students are entitled to relief under federal law. As important, no existing process ensures that students with similar claims will be treated in the same way and that independent experts will make these determinations.

Monday, October 3, 2016

Today, the U.S. Supreme Court announced that it would not review the case of O’Bannon v. NCAA antitrust case. The decision lets stand a Ninth Circuit Court of Appeals ruling that the NCAA is subject to antitrust scrutiny but that schools are not required to compensate student athletes with money “untethered to educational purposes.”

Professor Emeritus Dan Lazaroff, former director of the Sports Law Institute at Loyola Law School, Los Angeles, is available for commentary. Of the decision, the antitrust expert says:

“This is not a surprising result, given the fact that other antitrust cases against the NCAA are pending in the Ninth and other federal circuits. Some of the ongoing litigation sweeps more broadly than O'Bannon, so it makes sense for the court to consider these issues down the road with a more complete picture of where the lower federal courts stand. The court likes to take up cases when there is a conflict in the circuits, so waiting increases the likelihood of that. Being down one justice might have been a factor. My sense is that any vote by the eight could easily break down 4 -4, and that would make for a big waste of everybody's time.”

Monday, September 26, 2016

On June 1, 2016, Michael Waterstone became the 18th dean of Loyola Law School, Los Angeles. Waterstone, who also is senior vice president at Loyola Marymount University, is a nationally recognized expert in disability and civil rights law. He has consulted on projects for the National Council on Disability, authored a case book, and worked with foreign governments, non-governmental organizations and academic institutions on disability rights laws. He also is an associated colleague with the Harvard Law School Project on Disability.

Waterstone first joined Loyola's faculty in 2006, teaching civil procedure, disability law and employment law. He served as Associate Dean for Research and Academic Centers from 2009–2014, chairing the employment committee. In 2014-2015, he was a visiting professor at Northwestern University School of Law, where students selected him as the Outstanding First Year Professor.

Prior to his tenure with Loyola Law School, he taught at the University of Mississippi Law School. He also worked as an associate in the Los Angeles law firm of Munger, Tolles & Olson, LLP for three years, focusing on commercial litigation.

A native of Los Angeles, Waterstone earned his law degree in 1999 from Harvard Law School and his B.A. in political science from UCLA.

We sat down with Dean Waterstone at the law school’s Frank Gehry-designed campus located in downtown Los Angeles to talk about Loyola, his experience, and his new role as Dean.

What is special about Loyola Law School?
Our Jesuit tradition teaches us the importance of educating the whole person. One of the things that distinguishes Loyola Law School is our commitment to social justice. Our students are using their legal education to help make the world a better place, however they define that. That has always been a key part of who we are and always will be. Our pro bono commitment is a longstanding reflection of that fact.

As a lawyer at private firm you also did pro bono work.
I was a commercial litigation lawyer for three years, and I found the work interesting and I liked solving problems. At the same time, I also had a pro bono practice in disabilities rights law.

What drew you to disability rights law?
I had a cousin with muscular dystrophy. I think when you have a family member with a disability you tend to see some things differently. I wrote my third-year paper on the Casey Martin case — the professional golfer who sued [the PGA Tour for the right to use a golf cart during competition] under the Americans with Disabilities Act. I felt like there was so much up for grabs in this area. People with disabilities are a diverse community that has tended to be excluded from society and not had full rights in a number of areas. It has been a wonderful professional journey to try to use law to change that, and we’ve come a long way but there is certainly still a long way to go.

Thursday, September 22, 2016

What do the following Presidents have in common: Thomas Jefferson, Abraham Lincoln, Woodrow Wilson, and Franklin D. Roosevelt? All are frequently voted by historians as amongst the 10best U.S. Presidents – and all were lawyers or law school graduates.

And what do the following Presidents have in common: Millard Fillmore, Franklin Pierce, James Buchanan, and Richard Nixon? All are frequently voted by historians as among the 10 worst U.S. Presidents – and all were lawyers or law school graduates.

Combined with the fact that many highly regarded presidents were not trained in law – including George Washington, Harry Truman, and Dwight Eisenhower – these lists suggest that legal training is not necessarily correlated with the good judgment, political acumen, and leadership skill necessary to excel in the Oval Office. But there’s more to the story than the best-and-worst rankings.

The most important number may be that 25 out of 44 presidents graduated from law school or practiced law. (The two are not the same thing, especially in earlier times when most lawyers entered the profession through apprenticeship.) Lawyers represent only 0.36% of the U.S. population, but over 56% of presidents. The electorate, it seems, considers legal training a useful characteristic in presidents – or least not a disqualifying one.

It stands to reason that legal credentials would be common among the people who excel at politics and public service. People with an interest in government tend to gravitate toward law, since most government posts involve law in one capacity or another, whether it be making it, interpreting it, or enforcing it. As a result, the pool of credible presidential candidates is more lawyer-heavy than the public at large. This helps explain why three out of four of this year’s presidential and vice-presidential candidates – Hillary Clinton, Tim Kaine, and Mike Pence – were practicing lawyers before running for public office. And why one former president – William Howard Taft – and one serious presidential candidate – Charles Evans Hughes – later became chief justices of the U.S. Supreme Court.

The modern J.D. degree builds knowledge and skills useful for office-holders even if they never represented clients. President Barack Obama, for example, never had a private practice comparable to that of First Lady Michelle Obama. But like President Bill Clinton before him, he taught constitutional law at a law school (where one eye could also be kept on political opportunities). For which of our past lawyer-presidents was the daily practice of law a major part of their personal and professional identity? President John Adams considered one of his greatest professional accomplishments to be his successful defense of some very unpopular criminal defendants: British soldiers charged in the Boston Massacre. President Abraham Lincoln was a self-taught lawyer renowned for his courtroom skills. His “country lawyer” persona remains a defining part of his legacy. Rounding out this list of presidents whose outlook on life may have been shaped by their legal practice is Richard Nixon, who practiced law both before entering Congress and during his mid-1960’s political hiatus. Nixon’s most well-remembered statement – “I am not a crook” – interacts poignantly with Lincoln’s advice to young lawyers: “Resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.”

A law degree is of course no guarantee that today’s student will win tomorrow’s election. It does not guarantee how history will remember future lawyer-presidents. But as a credential that is both relevant for the job and respected by the voting public, a law degree seems to be a sound political investment.

Friday, September 16, 2016

This op-ed originally appeared in the Friday, Sept. 16, 2016 edition of the Daily Journal.

On Aug. 29, Gov. Jerry Brown vetoed Senate Bill 1257, which would have required those seeking admission to the California State Bar to complete 50 hours of free legal services for those who could not otherwise afford to pay a lawyer for her services.

I was shocked, as were most of the lawyers I knew, by Brown’s veto because for years there have been signs that such a requirement seemed inevitable.

Let’s go back a few years. In 2012, the State Bar Board of Trustees approved the appointment of the Task Force on Admissions Regulation Reform. For almost four years, TFARR studied proposed competency training requirements for admittees to the California Bar. The seemingly least controversial of its proposals was the requirement that those seeking admission complete 50 pro bono service hours. I spoke with law school public interest and pro bono project directors across the state and, while other aspects of the TFARR recommendations were hotly contested and debated, everyone thought this requirement would easily be instituted.

Further, I have spent the last 16 years at Loyola Law School, Los Angeles, the first ABA-approved law school in California with a pro bono legal service hours graduation requirement. It’s an extension of Loyola’s social justice mission from its founding. It is part of our identity and a tool for helping to address the access to justice gap in the community. In fact, many students choose Loyola recognizing and appreciating the school’s commitment to service. And our students annually contribute 60,000 hours or more in pro bono services. Similarly, as of Aug. 23, the ABA Standing Committee on Pro Bono and Public Service reported on its website that of the 184 law schools responding to the survey, 41 have a pro bono or public service requirement for graduation. Another 127 have formal voluntary pro bono programs; 16 others have independent student pro bono projects.

Then State Sen. Marty Block entered the conversation with SB 1257, an answer to the access to justice gap for the masses who cannot afford a lawyer. A no-brainer, right?

Tuesday, August 30, 2016

Loyola Law School, Los Angeles Professor Michael Guttentag’s newest law review article, “Selective Disclosure and Insider Trading: Tipper Wrongdoing in the 21st Century” discusses the first Supreme Court insider trading case in almost twenty years. In Salman v. United States, which is scheduled for oral argument on October 5th, the Supreme Court will consider when an insider’s tip to a friend or relative can trigger insider trading liability. Professor Guttentag, a securities law expert, provides background and context about what is at stake in this Supreme Court consideration of when tips can violate federal securities statutes. The article will be published in the Florida Law Review.

“I am hoping the Supreme Court will be bold enough to admit that the old rules about what counts as an illegal tip, developed in the era of the fax machine, are pretty much obsolete now,” said Guttentag, John T. Gurash Fellow in Corporate Law & Business. “In 2016, company policies and securities regulations strictly prohibit leaking confidential information. Insider trading law needs to reflect this new reality.”

Abstract:

The Supreme Court in deciding Salman v. United States should update a confused and increasingly obsolete aspect of insider trading doctrine: the rule that the selective disclosure of material nonpublic information can only trigger insider trading liability if “the insider personally will benefit, directly or indirectly, from his disclosure.”

When it was introduced in Dirks v. SEC in 1983 this “personal benefit” test represented an imperfect effort to balance four competing rationales for determining when providing a tip should trigger insider trading liability. Two developments since Dirks was decided have made problems with this personal benefit test insurmountable. First, the SEC’s enactment of Regulation Fair Disclosure in 2000 supplanted federal common law regulation of selective disclosures by public companies and, more pointedly, prohibited public companies from making precisely the types of selective disclosures to Wall Street analysts that the Dirks personal benefit test was designed to protect. Second, the adoption of the misappropriation theory of insider trading in United States v. O’Hagan greatly expanded the types of deceptive conduct that might lead to insider trading liability with important ramifications for how to identify tipper wrongdoing.

After Regulation FD and O’Hagan, the best approach going forward for identifying tipper wrongdoing would be to go back to the underlying statutory prohibition against deceptive conduct. Receipt of a personal benefit should be a sufficient, but not necessary, condition for finding that a selective disclosure is sufficiently deceptive to trigger insider trading liability. Based on this updated standard, the Salman conviction should be upheld.

Thursday, August 25, 2016

Loyola Law School, Los Angeles Professor Adam Zimmerman’s newest law review article, Inside the Agency Class Action, sheds light on an often-overlooked bottleneck in ordinary citizens’ access to justice: the thousands of cases stuck in administrative courts. Cases brought in this system of shadow litigation often languish for years without remedy – delaying justice for plaintiffs ranging from veterans seeking compensation for medical care and children harmed by vaccines to students duped by fraudulent private universities and others in dire financial straits. Zimmerman and co-author Michael Sant’Ambrogio’s solution of using techniques developed for mass litigation has been met with enthusiasm by the federal government, which adopted recommendations permitting class actions in administrative hearings.

ABSTRACT:
Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.

A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.

This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies — including agency polticymakers, staff and adjudicators — we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.

Hillary Clinton’s Tax Plan
Hillary Clinton’s tax plan would increase federal revenue by over $1 trillion in the next 10 years, by increasing taxes on very high-income Americans, but not on middle-class and poor Americans. Her tax proposals, which are detailed and complex, combine a new surtax (an income tax rate increase) on the top 1 percent of earners, a new minimum 30% effective tax on taxpayers earning $1 million or more per year, limitations on the tax benefits of itemized deductions, and estate and gift tax increases. She also proposes an “exit tax” on U.S. corporations that try to avoid U.S. taxes by moving to low-tax jurisdictions overseas.

Follow-up questions for Hillary Clinton:
What do you propose to do with the additional $1+ trillion of revenue your tax plan would raise in the next decade? For example, would you prioritize federal deficit reduction, funding the infrastructure improvements or new child care programs you’ve proposed already, or funding new proposals for tax cuts for middle-class or poor Americans?

Donald Trump’s Tax Plan
Donald Trump has scaled back an earlier tax plan that would have dramatically reduced income taxes, but also would have reduced federal revenue by many trillions of dollars and risked serious, negative macroeconomic effects. His revised tax plan proposes tax rate cuts for taxpayers at all income levels, but disproportionately benefits high-income Americans, through individual income tax rate cuts, corporate tax and business tax rate cuts, repeal of the estate tax and alternative minimum tax, and the conversion of certain tax credits into tax deductions. The revised tax plan is difficult for economists to model because it quite vague and lacks details. In light of the extensive tax cuts in the revised plan, it probably would reduce federal revenue and increase deficits and interest costs over the next 10 years, which ultimately would undermine the intended pro-growth effects of the Trump tax plan unless Trump proposes enormous new spending cuts.

Follow-up questions for Donald Trump:

How would you pay for your tax cut proposals? Both liberal and conservative economists agree that “pro-growth” tax cuts don’t pay for themselves. Your proposals are intended to promote economic growth, but that assumes that your tax cuts are not deficit-financed. If you plan to fund tax cuts through spending cuts, what spending programs would you cut? “Discretionary” federal spending already has been slashed. Would you propose spending cuts in any of the mandatory spending programs (such as Medicare and Social Security) that comprise over half of federal spending?

How and when will you fill in the details of your revised tax plan, so that economists can model the revenue effects of your plan?

Are you being vague about your tax plan to deflect attention away from federal taxes and your refusal to disclose your tax returns?

Why do you propose converting tax credits (such as the child tax credit), which benefit all taxpayers, into deductions, which do not benefit non-itemizers at all and disproportionately benefit Americans in the highest tax brackets? Respected scholars in economics and law (Lily Batchelder, Fred Goldberg, and Peter Orszag) recommend the opposite of what you are proposing; they suggest that we convert tax deductions and exclusions into tax credits, to contain the runaway costs of unlimited tax benefits and to eliminate upside-down tax subsidies that disproportionately benefit high-income Americans. Why are you proposing the conversion of tax credits into deductions?

Friday, August 12, 2016

Professor Kevin Lapp's law review article, "Taking Back Juvenile Confessions," addresses some of the key issues that undermined the confession and subsequent conviction of Brendan Dassey. A federal magistrate judge recently overturned the conviction of Dassey, whose story was featured in the Netflix series "Making a Murderer," on grounds that his confession was unconstitutional.

Wednesday, August 10, 2016

The Los Angeles Ethics Commission re-elected Professor Jessica Levinson as its president when it met on Tuesday, August 9.

From the LA Ethics Commission's official statement:

At its meeting today, the Ethics Commission re-elected Jessica Levinson as president and Serena Oberstein as vice president. Levinson and Oberstein will serve in these capacities for Fiscal Year 2016-2017.

Levinson is a clinical professor at Loyola Law School, where she teaches courses covering election law and campaign financing. She has also lectured on election law issues for various educational institutions and civic organizations. Previously, Levinson was the Director of Political Reform at the Center for Governmental Studies, where she researched and wrote reports on election laws, campaign finance laws, ballot initiatives, term limits, primary elections systems, and redistricting. She also authored an amicus curiae brief for the United States Supreme Court regarding the constitutionality of public campaign financing. Levinson was appointed by City Controller Ron Galperin to a five-year term ending June 30, 2018.

Oberstein is the Chief Operating Officer for Vision To Learn, which provides free eye exams and eyeglasses to students in low-income communities. She previously worked on policy issues in former Mayor Antonio Villaraigosa’s office, as well as for Partnership for Los Angeles Schools, New York City Small Business Services, and J Street. Oberstein also has experience working on campaigns for candidates running for City office. She holds a Bachelor of Arts degree in political science from the University of California, San Diego and a Master’s in Public Administration degree from New York University. Oberstein was appointed by City Council President Pro Tempore Mitchell Englander to a five-year term ending June 30, 2019.

The Ethics Commission is comprised of five individuals who serve staggered five-year terms. The Mayor, the City Attorney, the Controller, the City Council President, and the City Council President Pro Tem each have one appointment to the commission. The commissioners elect their own president and vice president each year. In addition to Levinson and Oberstein, [Loyola alumna] Ana Dahan, Melinda Murray, and Andrea Ordin also serve as commissioners.

Thursday, July 28, 2016

Elections should be about ideological differences. Liberals and conservatives, or Democrats and Republicans, tend to have different worldviews. Most people agree on a few broad and fundamental premises. We just do not agree on how to get there. This election cycle is different.

This is a battle between the first female nominee of a major political party and the first nominee of a major political party who lacks any time in public office or military experience. This is a battle between equality versus discrimination. About tolerance versus intolerance.

The importance of Hillary Clinton's historic nomination as the first nominee of a major political party is underscored by the distressingly misogynistic comments coming from Donald J. Trump.

Unfortunately, in this historic election, the outcome will be decided by voters who are weighing in against one of the two leading candidates. As we have seen in the conventions, the candidates are not only trying to energize their supporters and get them to the polls, they are trying to convince undecided voters to vote against their opponent.

I think the work of Antony Duff might prove helpful here.
He believes wrongdoers are a specific category of people identified by a
duty that they are under: to answer to those they have wronged for
their unjustified and harmful act. The duty to answer is, so Duff
thinks, a feature of responsibility: wronging someone puts the wrongdoer
in a relationship with their victim. The victim has the duty (not just
the right, but—Duff believes—the duty) to call the wrongdoer to account;
and the wrongdoer owes the victim a response: the wrongdoer has a duty
to account for her wrongdoing by giving reasons to justify, excuse, or
accept the blame for her wrongdoing, and then take action to expiate her
wrong. Owing a response places the onus on the wrongdoer to come
forward with her account; morally, she cannot just stand pat and hope
no-one notices the wrong, or her responsibility for it.

Thursday, July 14, 2016

The next president of the United States will lead our nation’s police through the most important four years in the history of American policing. Their most critical responsibility will be to rebuild the morale of our nation’s police officers. The president will inherit a nation where law enforcement professionals feel paralyzed. As a result, violent crime is rising in all of our major cities. Recruitment numbers are falling. Proactive policing is dying or dead. Without a motivated, professional police community, re-energized to walk the thin blue line, no progress will be made.

In tandem with this mission, the president must address communities who do not trust that policing is being done in a constitutional, even-handed manner. There is no doubt that a small percentage of officers make errors in judgment during their shifts. Even more rarely, an officer with bad intentions uses their power for evil. These breaches of the public trust are abhorrent and should be swiftly punished. Increased funding for body cameras and other accountability tools should come in the first 100 days of the new administration. Once deployed, these will show that police misconduct is extraordinarily uncommon. The current national tone far exaggerates the frequency of true wrongdoing by sworn officers.

Leadership on policing starts at the White House and the Attorney General’s office. Both of these have failed to curtail the fomentation of an environment where the police are viewed as the enemy, and the law breakers are empowered as never before in our history. The expected result, a marked increase in crime, is beginning to cast its cloud over our people. The next president of the United States must act immediately and decisively to turn back this storm in a way that strengthens the bond between members of law enforcement and the communities they serve.

Adjunct Professor Steve Lurie teaches the Police Practice Seminar at Loyola Law School. He is a lieutenant with the Los Angeles Police Department.

Monday, July 11, 2016

Philander Castile was pulled over for a broken tail-light and shot while he reached for his registration. While there has already been much discussion of the shooting, one point is missing from the story: the police stop was likely a pretext to engage in drug interdiction.

Now I am not suggesting that Castile was stopped because he was black. Nor am I suggesting the contrary—that he was *not* stopped because he was black. What I am suggesting is that the primary purpose of the stop was *not* to tell him about his busted tail-light—an admirable act of beneficence on the part of the police officer—but to search Castile’s car for drugs. And it is this aspect of the encounter—a police officer, looking for drugs, and finding an armed individual inside the car, that inevitably produced the deadly result.

Friday, July 8, 2016

Recently, the state of Mississippi and federal government announced they were ending efforts to bring any further cases in the 1964 civil rights murders of Andrew Goodman, Michael Schwerner and James Chaney. This is unfortunate. Successfully bringing cold cases so many years later is incredibly difficult. Many of the culpable individuals have died and memories of witnesses have faded. But despite being understandable as a legal matter, this decision saddens me. There was only one prosecution by the state of Mississippi against any of the individuals involved in this atrocity, and the effort demonstrated how difficult justice can be to obtain but how crucial it is to pursue.

I know because I was there. In 2005, the state of Mississippi brought murder charges against Edgar Ray Killen, a self-avowed “preacher” who had coordinated the connection between the gang of Klansman and sheriff's office. At the time, I was a first-year law professor at the University of Mississippi, teaching civil rights law. I went down to Neshoba County for the murder trial, and brought one of my students from the area with me. It was a moving experience that I will never forget.

Remember, this had been a crime that had captivated the entire nation. The three civil rights workers were in Mississippi to register black voters during Freedom Summer. They were murdered by Klansmen working in direct connection with the sheriff's office. President Johnson sent the National Guard to find the bodies of the missing civil rights workers. But the state of Mississippi, the entity primarily responsible for seeking justice, did nothing. Forty years later, a community coalition of whites, blacks, and Native Americans issued a “call for justice,” urging officials to bring prosecutions against anyone who was still alive. This culminated in Killen’s trial.

Thursday, July 7, 2016

On Nov. 8, 2016, California voters will choose between two competing death penalty initiatives: Prop 62 ends capital punishment and saves California taxpayers $1.5 billion over the next 10 years, while the other measure, Prop 66, doubles down on the state’s costly, failed system, spending millions more in an effort to speed up executions.

The state has spent roughly $5 billion over the last 40 years on a system that has produced no more than 13 executions. Supporters of Prop 62, known as the Justice That Works Act, say it is too costly, it does not deter crime, it risks executing innocent people, it is not evenly applied racially or geographically, and it is fundamentally a failed system that cannot be repaired.

They say its time to end the death penalty because the system has long been dysfunctional and is now broken beyond repair. They also argue that ending the death penalty will prevent the state from ever executing anyone who is actually innocent of the crimes for which they were convicted. Prop 62 is retroactive and will convert the death sentences of the 747 inmates on death row to life without the possibility of parole and increase to 60% the share of wages earned while working in prison that are dedicated to victim restitution orders.

By contrast, the Death Penalty Reform and Savings Act of 2016, Prop 66, claims the system can be fixed and proposes to implement various amendments to state law aimed at speeding up the judicial review process and the rate of executions, including suggested time frames and limitations on direct appeal and habeas corpus proceedings, changing the process for appointment of to appoint counsel in direct appeals and habeas corpus petition proceedings, shifting initial jurisdiction for habeas corpus petitions, and making various other changes to the laws and procedures that would ease regulations surrounding the lethal injection protocols developed and employed by the California Department of Corrections and Rehabilitation (CDCR). These proposed changes will increase state costs by tens of millions of dollars annually, with the fiscal impact of such costs being unknown in the longer run.

Wednesday, July 6, 2016

Loyola Law School, Los Angeles professors continue to
enrich the dialogue about U.S. Supreme Court jurisprudence after the
court concluded its 2015 term in June with commentary on cases ranging
from evidence collection and affirmative action to immigration and
abortion access. Their analyses reached millions of people nationwide
via such outlets as NPR, the Wall Street Journal, the Los Angeles Times,
Politico, Bloomberg and more on an array of cases:

AFFIRMATIVE ACTION: FISHER v. UNIVERSITY OF TEXAS AT AUSTIN

Professor Kimberly West-Faulcon,
the James P. Bradley Professor of Constitutional , weighed in on the
U.S. Supreme Court’s 4-3 rejection of a challenge to the affirmative
action-based admissions policy of the University of Texas at Austin.
West-Faulcon, a nationally recognized expert on standardized testing and
reverse discrimination claims, filed an amicus brief in the case. She provided analysis to several outlets:

Yesterday’s decision in Fisher v. University of Texas at Austin marks
the first time Justice Anthony Kennedy has ruled in favor of a racial
affirmative action policy in the twenty-eight years he has served on the
Supreme Court. Unwilling to sound the death knell on racial affirmative
action in higher education, Kennedy ventured down a path he had never
taken before. He upheld the race-conscious component of the University
of Texas at Austin’s admissions policy as satisfying the stringent
strict-scrutiny standard of review. Instead of siding with rejected
white applicant Abigail Fisher or ruling that affirmative action is per se
unconstitutional as Fisher’s lawyers contended, Kennedy upheld the
policy Fisher challenged as unconstitutional despite an oft-articulated
constitutional aversion to race consciousness.

“This is momentous,” said Kimberly West-Faulcon, a law professor at
the Loyola Law School in Los Angeles. “Justice Kennedy has finally found
a racial affirmative action policy that he was willing to endorse. This
is a significant departure.”

Kimberly West-Faulcon, the James P. Bradley Chair in Constitutional
Law at Loyola Law School in Los Angeles, said Kennedy’s decision
represents a “significant departure” from his previous decisions in
affirmative action cases.“This is momentous,” West-Faulcon said.
“Justice Kennedy has finally found a racial affirmative action policy
that he was willing to endorse.“This is a significant departure from
every racial affirmative action case Justice Kennedy has decided to
date,” West-Faulcon continued, referring to Kennedy’s votes against
affirmative action policies in two higher education cases — Grutter and
Gratz — as well as other cases.

POLITICAL CORRUPTION: McDonnell v. U.S.

Professor Jessica Levinson,
who teaches Laws of the Political Process and Money, Politics & the
Supreme Court, opined on the Supreme Court’s vacating of the political
corruption conviction of former Virginia Gov. Bob McDonnell. Her
commentary appeared in several stories:

As a result of the court’s opinion, plenty of really disgusting
behavior, like that of McDonnell, is now legal. This is because the
court significantly narrowed the types of behavior that are
impermissible under the federal bribery statutes by reading the term
“official acts” as requiring more than “merely arranging a meeting,
attending an event, hosting a reception, or making a speech.” Instead,
in order to be found guilty anofficial must “make a decision or take an
action on (an) action or matter.”

"It allows for a great deal of activity that really sidelines the
average person who can't give a Rolex, a Ferrari or throw a wedding for
someone," said Loyola Law School professor Jessica Levinson. "It
essentially acknowledges that business as usual in political means money
talks really loudly."

Professor Allan Ides,
the Christopher N. May Professor of Law and a former clerk to U.S.
Supreme Court Associate Justice Byron White, deconstructed how the
alterered Supreme Court composition affected case outcomes.

“For run of the mill cases this is having no effect, but the
high-profile cases — Friedrichs, the contraceptive case, immigration —
it has had an impact and you can see it where the court has been unable
to resolve the case or tried to find some gimmick to send it back to the
lower court,” Allan Ides, a professor of law at Loyola Law School in
Los Angeles, said about the impact of a short-handed court."

IMMIGRATION: U.S. v. Texas

The co-directors of the Loyola Immigrant Justice Clinic
– alumnae Marissa Montes and Emily Robinson – were go-to sources of
commentary on the Supreme Court’s opinion in U.S. v. Texas, which struck
down President Obama’s executive action on immigration, Deferred Action
for Parents of Americans (DAPA).

Marissa Montes, Co-Director of Loyola Law School, Los Angeles’
Immigrant Justice Clinic, joins Morning Edition to discuss the Supreme
Court's tie vote, which blocked an attempt to help millions of
unauthorized immigrant families. The case goes back to the court of a
conservative federal judge in Texas.

"We would be naive to think he is going to side with the immigrant
advocates in this country who want protections," Emily Robinson,
co-director of the Loyola Immigrant Justice Clinic in Los Angeles, said
in an interview Friday.

EVIDENCE COLLECTION: UTAH v. STRIEFF

The Supreme Court opinion in Utah v. Strieff allows into court
evidence found during an unlawful stop if the suspect was later found to
have an outstanding warrant. Loyola professors opined on the impact of
this decision in several stories:

Professor Laurie Levenson,
the David W. Burcham Professor of Ethical Advocacy, analyzed for
Bloomberg BNA the Supreme Court opinion that On why this type of
evidence is not considered fruit of the poisonous tree: “The court was
using the Attenuation Doctrine. It’s never been used before in this
situation,” said Levenson. “ The only thing you had here intervening was
the arreseting officer finding an outstanding warrant.”

“Thoughts on Utah v. Strieff: A Blow to Democratic Accountability of Police,” Summary Judgments, June 21, 2016
Professor Eric Miller,
who teaches Criminal Procedure and related cased, assessed the impact
of the Supreme Court’s decision in Utah v. Strieff, which opened the
door for police evidence to be presented in court even when obtained
without a search warrant and without initial probable cause. His
commentary appeared on the Summary Judgments faculty blog, “The police
can now target high-crime neighborhoods in which individuals have
greater likelihood of warrants and engage in random stops with virtual
impunity. In a city like Ferguson, Missouri, where the number of
outstanding warrants is larger than the number of citizens, the right to
avoid the police is a chimera.”

Professor Jennifer Rothman
has closely followed the case of O’Bannon v. NCAA, a case in which NCAA
athletes are seeking payment for the use of their likenesses in a
videogame. The case involves right of publicity issues – an area on
which Professor Jennifer Rothman, Joseph Scott Fellow, is a nationally
renowned expert. Rothman runs Rothman’s Roadmap to the Right of Publicity. Her filing of an amicus brief to the Supreme Court received coverage:

Another brief
from 28 legal scholars, dated Monday, focused on what the professors
described as a problem with the Ninth Circuit’s First Amendment
analysis. The 28 law professors are represented by Eugene Volokh of the
UCLA School of Law and Jennifer E. Rothman of Loyola Law School, Los
Angeles.

Professor Paul T. Hayden's book,
"The Law of Torts," is cited in the U.S. Supreme Court's opinion
turning on when liability arises under the False Claims Act.
[Excerpt from the opinion]

We need not resolve whether all claims for payment implicitly
represent that the billing party is legally entitled to payment. The
claims in this case do more than merely demand payment. They fall
squarely within the rule that half-truths—representations that state the
truth only so far as it goes, while omitting critical qualifying
information—can be actionable misrepresentations. A classic example of
an actionable half-truth in contract law is the seller who reveals that
there may be two new roads near a property he is selling, but fails to
disclose that a third potential road might bisect the property. See
Junius Constr. Co. v. Cohen, 257 N. Y. 393, 400, 178 N. E. 672, 674
(1931) (Cardozo, J.). “The enumeration of two streets, described as
unopened but projected, was a tacit representation that the land to be
conveyed was subject to no others, and certainly subject to no others
materially affecting the value of the purchase.” Ibid. Likewise,
an applicant for an adjunct position at a local college makes an
actionable misrepresentation when his resume lists prior jobs and then
retirement, but fails to disclose that his “retirement” was a prison
stint for perpetrating a $12 million bank fraud. See 3 D. Dobbs, P. Hayden, & H. Bublick, Law of Torts §682,
pp. 702–703, and n. 14 (2d ed. 2011) (citing Sarvis v. Vermont State
Colleges, 172 Vt. 76, 78, 80–82, 772 A. 2d 494, 496, 497–499 (2001)).

Thanks to the powers at Prawsfblawg for inviting me back. I'm a law professor at Loyola Law School, Los Angeles. I always appreciate the opportunity to place my nascent thoughts in the public forum, and see what interests folks. For the most part, I'll blog about criminal procedure in general, and in particular policing. But given the date, I thought something else might be more appropriate.

I’m Scottish. Given the current temporal proximity of Brexit and the Fourth of July, in which Americans celebrate their revolting forebear’s legally irrelevant secession statement, I'll impart one thought on nationalism. We might think that nationalism is a unilateral affair: it states “I assert my independent status as Scottish/English/American/etc.” But nationalism is, in fact, a bilateral or multilateral affair: in asserting your American identity, you rejected your British identity. It is possible to have multiple identities—Scottish and British and European. But multiplicity sits uncomfortably with nationalism. Even if Scots want to be independent *within Europe*, Scottish nationalists want to be *not-British* within Europe. And for Scottish nationalists, Europe is not an independent national identity: it is a subsidiary part of the Scottish identity. Scotland, the Scottish nationalists assert, is a European country, not limited in its projects to the British Isles (and maybe even not oriented in its projects to the British Isles).

Friday, July 1, 2016

Not since the 1993 Ross Perot-Al Gore debate on NAFTA have international trade issues appeared so prominently in U.S. political discourse. Both the insurgent presidential candidates -- Donald Trump and Bernie Sanders -- called for a break from longstanding U.S. policies favoring international trade. Two major ongoing trade initiatives - the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) - are threatened.

Britain’s recent decision to exit the European Union has almost certainly ended any prospect of concluding TTIP, and both Trump and Hillary Clinton are now expressing opposition to TPP. Trump’s opposition to TPP is a bit surprising, as TPP was designed to counter China’s influence in the Pacific region. China is the central focus of Trump’s neo-nationalist ire; he

promises to subject Chinese goods to punishing tariffs. Were he to do so, it would likely plunge the entire World Trade Organization into crisis, effecting a U.S.-style “Brexit” from the international trading system.